PADAIYACHI & WEERASINGHE

[2015] FamCA 478

FAMILY COURT OF AUSTRALIA

PADAIYACHI & WEERASINGHE [2015] FamCA 478

FAMILY LAW – CHILDREN – With whom a child lives
FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – CHILDREN – Parental responsibility – equal shared parental responsibility

Family Law Act 1975 (Cth), ss 61DA, 65AA

APPLICANT: Ms Padaiyachi

RESPONDENT: Mr Weerasinghe

FILE NUMBER: SYC 4662 of 2014

DATE DELIVERED: 24 June 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 9 & 10 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Miller

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Self represented

Orders

1. Ms Padaiyachi, the mother, and Mr Weerasinghe, the father, will share equal parental responsibility for B, born … 2005, and C, born … 2007.

2. The children will live primarily with their mother.

3. a.    The mother will authorise any school that the children attend to provide to the father at his request, and at his expense, copies of any reports, notices or other documents held by the school in relation to either of the children. 

   b.The mother will authorise any medical practitioner (or similar service provider in relation to the children’s health) to provide to the father at his request information relating to the children and any diagnosis or treatment carried out by the practitioner. 

   c.The mother will advise the father and keep him advised about the schools that the children are attending from time to time and will, within a reasonable period after the children’s attending upon a medical practitioner (or provider of services of a similar nature) advise the father of the name and contact details for that practitioner.  This will not however, oblige the mother to provide details of minor illness and the treatment therefore. 

   d.The mother will provide the father with details and keep him informed about the details of any extracurricular activities in which the children are engaged from time to time on a regular basis. 

4. The children will spend time with their father in the United States of America (USA) for three weeks during the June/July Australian school holidays and for three weeks during the December/January Australian school holidays.  In respect of the later period the time that the children spend with their father will be as agreed between the parents but if they are unable to agree will commence on 1 January in each year. 

5. In Australia the children will spend their first school term holidays with their father for up to a period of fourteen days in each year and for up to six non-contiguous weeks during the school year other than during the third term school holidays.

6. In respect of the children’s time with their father in the USA the mother will book and pay for her and the children’s flights to the USA and will accompany the children to the USA until the parents agree that the children can travel unaccompanied.  In addition, the mother will be responsible for her accommodation in the USA if she chooses to remain while the children are with their father. 

7. The father will pay for his fares to Australia to see the children and will be responsible for his accommodation and that of the children during the time that the children are with him in Australia. 

8. The father will ensure that if the children are staying with him during the school time that the accommodation that he obtains for himself and the children will be conveniently located to the school so that their education and extracurricular activities will not be disrupted during the time that he is with them. 

9. In respect of the time that the father spends with the children in Australia he will provide to the mother not less than thirty days’ notice that he will be spending time with the children during their first term school holidays and will provide not less than thirty days’ notice to the mother of the time that he proposes to spend in Australia with the children other than during the first term school holidays. 

10. Noting that the third term school holidays are not to be time that the children spend with their father (unless the parents otherwise agree) the mother is free to take the children outside Australia including to Country I during that period or at any other time in the year if she chooses in consultation with the schools that it is appropriate to do so, if it is within school term provided always that in respect of any such overseas trip she will provide not less than thirty-five days’ notice to the father of the impending trip and provide to him at the same time an itinerary and confirm that she is holding return tickets in respect of the children and provide photocopies thereof to the father. 

11. a.    The children may communicate with their father at any time that they wish by electronic means including but not necessarily confined to Skype, Facetime or telephone and the mother will facilitate such communication by the children and will not interfere with such communication. 

    b.The father may communicate with the children twice in each week between Monday to Friday for periods of up to no more than fifteen minutes and may initiate communication with them for a period of not greater than one hour on a weekend. 

    c.However, the father be and is hereby restrained from communicating with the children during the time that they are in school or when they are engaged in extracurricular activities as notified to him by the mother in accordance with the orders set out above. 

12. The father be and is hereby restrained from administering any physical or corporal punishment to either of the children.

13. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

14. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

15. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

16. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Padaiyachi & Weerasinghe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4662 of 2014

Ms Padaiyachi

Applicant

And

Mr Weerasinghe

Respondent

REASONS FOR JUDGMENT

1. This was a matter about where two children, B, born in 2005 (now ten years of age), and C, born in 2007 (now eight years of age) would live and how they would spend time with their respective parents.

2. The applicant was the children’s mother, the respondent the children’s father. 

3. The parties were married in 2004 in the United States of America (‘the USA’) and they separated in about December 2008.  On 19 March 2010 orders were made in the Court of Common Pleas in F State where the parties were then living as set out in annexure 1 of this judgment.  Both parties were of Country In origin and had family living in Country I.  Both were from Country I. 

4. As appears from the orders in annexure 1 it was contemplated that the mother would travel overseas with the children to Australia and there to take up employment in Newcastle, New South Wales. 

5. Indeed the mother left the USA on 23 March 2010 and travelled to Country I where she and the children stayed until October 2011.  This was not with the consent of the father who persisted throughout the proceedings in this Court to maintain that the children might well be in danger if they were in Country I.  It was common ground that the applicant’s father was a political activist and had been assassinated some fifteen years ago. 

6. Subsequently, the mother and children moved to Australia to live in Adelaide in 2011.  However, employment opportunities presented themselves in Canberra and the mother moved there with the children in January 2013 where she commenced work in the medical centre in Suburb D in the Australian Capital Territory in February 2013.  The mother is a qualified health professional.  The father is, and was at that time, an actuary. 

7. The mother’s current employment is at the medical centre at the E University and has been since about February 2014.  The father who had moved from F State to G State began proceedings again in the F State Court effectively asserting that the mother was in breach of the orders made in March 2010 and seeking orders (apparently) restraining her from removing the children from Australia.  The mother herself commenced proceedings by filing an application on 3 October 2014 in the Family Court of Australia in Canberra.  She sought the following final orders:

   1.That each of the parties have equal shared parental responsibility for the children [B] born … 2005 and [C] born … 2007.

   2.That the children live with the Wife.

   3.That the children spend time with and communicate with their father as follows:

   a)With the father in the United States for the whole of the June/July holidays;

   b)In Australia for 3 weeks of the December/January school holidays;

   c)By Facetime/Skype for up to 10 minutes, 3 times per week before the children commence school;

   d)By email.

   4.That the Wife be permitted to remove the children from Australia for overseas holidays, including to Country I, so long as she provides the Husband with 14 days notice and provides itinerary and contact details.

   5.That the Wife pay for the children’s travel to and from the United States and the Husband pay for his travel to and from Australia.

8. The father’s response filed on 19 January 2015 sought a suite of orders which are set out as follows:

   1.That each of the parties have equal shared parental responsibility for the children [B] born … 2005 and [C] born … 2007.

   2.That mother refrained (sic) from Child Alienation and discussing matters related to Custody and Divorce Matters with both parties children under any circumstances.

   3.That the children spend time with and communicate with their father as follows:

   4.That the children spend time with their father in the United States for the whole of June/July holidays for three (3) weeks;

   5.That the children spend time with their father in the United States for the whole of April holidays for two (2) weeks;

   6.That the children spend time with their father in Australia for the whole of October holidays for two (2) weeks;

   7.That the children spend time with their father during their January/December school holidays in the United States for 4 weeks in such a way that the father will will (sic) travel to Australia and bring them back to the United States and thereafter mother shall pick them back from United States and exercise her vacation in January with the children. 

   8.That the children communicate with their father on a daily basis via skype/facetime and by e-mail.

   9.That wife pay for all the transportation costs for both parties travels to and from Australia.

   10.That wife is permitted to remove the children from Australia for overseas holidays, after obtaining written notorized letter of consent from the father.  And she provide the father atleast (sic) 60 days written notice and provides itinary (sic) and contact information in advance.

   11.That the children spend time with their father for upto (sic) six (6) additional, non-contiguous weeks near mother’s residence in Australia, at fathers expense and option as to time, but in no event to be contiguous with any other period of partial or temprory (sic) custody.

9. It is immediately obvious that there are some points of commonality.  Each of the parties seeks that the mother and father share equal parental responsibility for the children.  Although he does not explicitly concede the matter in the orders he is seeking, it is obvious that the father agrees that the children should live principally with their mother. 

10. It is also common ground between the parties that the children should spend time with their father in the USA for part of their school holidays in every year and that the children might also spend time with their father in Australia at other times.  The mother seeks somewhat restricted communications between the father and the children by Skype.  The father seeks daily communication. 

11. The mother sought that she be permitted to remove the children from Australia for overseas holidays including to Country I on the basis that she provides to the father fourteen days’ notice and provides itinerary and contact details.  She subsequently amended this in line with the recommendation from the Family Consultant in the Family Report s to thirty-five days’ notice.  The father sought to restrain the mother from taking the children to Country I but otherwise was content that the children and the mother should travel overseas for holidays. 

12. During the course of the final proceedings in this matter the father conceded that the mother’s orders sought about removing the children for overseas holidays including to Country I on the basis of thirty-five days’ notice to him were something that he could agree with. He conceded that I could make orders accordingly. 

Jurisdiction

1. Initially the father disputed the jurisdiction of this Court saying that the matter should be dealt with in F State notwithstanding that he did not live in F State - and neither did the mother.  He subsequently conceded jurisdiction and the matter proceeded to a final hearing on the substantive issues between the parties. 

2. The father was offered the opportunity of participating in the proceedings by video connexion but chose to be involved in the hearing by telephone instead.  The father was self-represented, the mother had counsel appear for her. 

3. I am satisfied that the mother’s moves within Australia were consistent with her trying to obtain satisfactory employment as a doctor.  Her residency status in Australia has not yet been finally resolved but she is confident that she will be able to extend her existing visa and to remain in Australia indefinitely.  This Court has jurisdiction in relation to the children in any event because the children are present in Australia.

Background

1. After obtaining employment in Canberra the mother bought a house in a Canberra suburb for the sum of $1.4 million with some relatively minor assistance from her brother in Country I.  There is no suggestion that her employment arrangements interfere with her ability properly to care primarily for the children.  She is a person of some independent wealth as a result of inheritances and family funds.  These were the subject of some cross-examination by the father during the course of proceedings.  The mother earns in excess of $200,000 per year. It is difficult to precisely determine the father’s income but it appears to be approximately one third to one half of the mother’s.

Communication

1. While the children have been living in Australia their father communicates with them almost daily via Facetime or Skype and sometimes that communication is of limited duration – a few minutes, and sometimes it is of a more protracted nature particularly on weekends.  It appears that frequently the communication occurs while the children are on their way to school and the mother asserts that this is sometimes disruptive of the children’s routine. 

2. Both parties agreed that there should be no impediment whatsoever to the children’s communicating with the parent with whom they were not at any particular time living, by Skype, telephone or Facetime or for that matter by any other electronic means at any time they chose to do so. 

3. The mother asserted that there should be certainty about the times at which the father might communicate with the children in this way for two reasons; one, so that there could be some stability about the children’s activities and day to day routine and; two, because it would be easier to ensure the children were available to speak to the father and to avoid any confrontation arising from his being unable to communicate with them when he wanted to do so.  The father’s position became less concrete during the course of the trial but essentially seemed to come down to the fact that he should be able to communicate with the children at least briefly every day and that it was appropriate for this to occur. 

4. He was somewhat critical of the mother for not ensuring that the children were available at all times when he wanted to speak to them. 

5. He used the words “I need to talk to the children” (or words to that effect ) and I pointed out to him that he had expressed himself on the basis of his needs rather than the children’s.  This was in keeping with a more general lack of empathy (as I observed it) by the father who seemed to be more focused on his requirements and his needs rather than those of the children. 

6. That having been said, I could not, and do not, doubt the sincerity of the father’s desire to spend as much time with the children as he reasonably can.  Precisely how much time that might be is somewhat difficult to discern.  The father’s practice as an actuary appears to be a busy practice and although he produced some evidence - or at least a letter - from his employer which indicated a degree of flexibility in the hours of work that he might undertake or where he might do his work, his holiday time is limited. Notwithstanding my invitation to do so, the father was not prepared to give an unequivocal commitment to spending all of his holiday time with the children. 

Practical challenges about the time the children might spend with their parents

1. The time that the father wants to spend with the children is quite extensive and, inevitably, the time that he might spend with the children in the USA would have to involve, at least in part, the intervention of his parents who live in Country H.  I have no reason to suspect that the children’s paternal grandparents are anything other than willing, able, and, indeed happy, to spend time looking after the children.  They are not however parties to these proceedings, have sought no orders for themselves and their son has not sought any particular orders in relation to his parents.

2. Essentially these proceedings are about what is in the best interests of the children not of the parents and not of the grandparents.  The parties have filed various affidavits in support of their applications and have provided some financial information.  The later was important because of the fact that the original orders made provision that the mother should pay in relation to the time the children should spend with their father.  In these proceedings the father sought that the mother should pay all travel expenses relating to the children including the cost of his travel to visit the children in Australia. 

   a.For six two-week periods each year, separated by approximately equal intervals, three of which shall occur near Plaintiff’s residence in the United States and three of which shall occur near Defendant’s residence in Australia, the airfare for all six such periods of the children and parties to be the responsibility of Defendant, the mother, and Defendant, the mother, having a right during such periods to exercise physical custody of the children for one 24/hour period of each such week;

   b.For up to six additional, non-contiguous weeks near Defendant’s residence in Australia, at Plaintiff’s expense and option as to time, but in no event to be contiguous with any other period of partial or temporary custody;[1]

   [1] Order of Court 19 March 2010

1. This issue he pursued in part based on the fact that the mother had what he would undoubtedly describe as a vastly superior financial position to his.  For her part, the mother sought a degree of relief from such an obligation.  While acknowledging her income and indeed her assets were likely to be superior in value to the husband’s, and while she acknowledged that the husband was paying child support at the rate of approximately US$10,656 per year to her, the mother’s expenses for the children significantly exceeded any child support she was receiving.  The cost of schooling (the father was not in dispute about the school the children should attend) reduced the difference between the assets and income of the parties. 

Family (Limited Issues) Report

1. To assist in the preparation of the matter I engaged the Family Consultants attached to the Family Court to prepare a Limited Issues Report in accordance with Terms of Reference which are endnote [i].  It was of considerable assistance to me in assessing what the views of the children are, and to help in evaluating both the evidence of each of the parents and my observations of them.[2] 

   [2] My observations of the father were (by his choice) confined to my hearing him over the telephone.)

2. The differences between the parents about what would be in their children’s best interests are not (overall) substantial.  My impression was that both were committed to, and loved, their children.  This was corroborated by the Report and the reported statements of the children to the Family Consultant.

3. I did form the opinion that (perhaps understandably) the father resented that the mother had greater financial resources than he did, and that he was in some respects, resolved to make her bear substantially (in fact almost entirely) the costs of his spending time with the children.  The mother does have (it appears) relatively substantial resources but the father appeared to me to be unwilling but not necessarily recalcitrant about prioritising a fair share of the children’s expenses from his own resources.  I have reflected what I regard as a fair resolution of these matters in the Orders I make. 

4. The report dealt in part with the issue of the father’s asserted violence towards the children. 

5. During the course of the hearing the father’s evidence about violence was somewhat less than satisfactory.  In relation to the alleged ear twisting, the father asserted that he had “nudged” his son.  This apparently occurred, he conceded, when his thumb and forefinger were in connexion with his son’s lower ear.  He also admitted to “smacking” the children in the past but was not ready to acknowledge that he “hit” the children.  The distinction between hitting and smacking would seem to exist mainly in the father’s mind. 

6. He was similarly dismissive of assertions that he had punched the mother in the face while driving the car.  He asserted that he had given her a “back-hander” and that her broken tooth was a result of his ring coming into contact with her teeth. 

7. Because the Family Law Act1975  (“the Act”) requires that I take into account questions of family violence, these are important matters and the father’s inability to acknowledge his past violent activity at least raises a potential concern for the future.  Nevertheless, it seems to me that it is probable, having listened to the father, and concluded that in general terms he is a person who will obey Orders, that if I should impose an injunction restraining him from administering any corporal punishment to or striking the children while they are with him, the father would comply.

8. Paragraph 47 of the Report is to the father’s credit.  B comments that his father “is understanding and does not get angry” if B needs to finish a telephone call.  Equally I was impressed with the fact that notwithstanding the excessive frequency (in my opinion) of the father’s electronic communication with the children, the mother was supportive of regular communications.[3] 

   [3] [48] and [60] of the Report among other places.

9. The Report also commented[4] about the fact the children enjoyed spending time with their friends out of school and school holiday programs.  They also enjoyed spending time in Country I.[5] 

   [4] [79]

   [5] [81]

10. One of the problems that the Report highlights is how in the end the parents can adjust their respective requirements for the children in such a way that they have time to be children themselves and to have fun with their friends as well as spending time with parents and family and friends and travelling and still participating in school and extra-curricular activities.  The orders I make in this matter have been crafted to take account of that to some extent by placing the onus on the mother to arrange two trips to America a year and to pay for them. I accept this will be both difficult and expensive.  The Orders also provide for the father to spend such further time in Australia as he is able to fund and arrange.  However, time will be left free for the mother to travel annually if she wished to do so to Country I and it is to be hoped that the children will communicate regularly with their parents about what they want and do not want so that the parents will have the opportunity to facilitate a balanced life for the children. 

Consequences of an Order for equal shared parental responsibilities

1. In a matter such as this because of the provisions of s 61DA of the Act (as I am being asked by each of the parties to make an order affording to them equal shared parental responsibility for the children and as I consider that it would be appropriate to do so) while I might be satisfied that the violence that was occasioned upon the mother by the father in the past would rebut the presumption of equal shared parental responsibility, where both parties seek such an order and there is no other reason demonstrated in the particular circumstances of the matter, I propose to make that order.

2. This means that I must necessarily consider whether it would be appropriate to make an order for equal shared time between the children and if that should not be practicable to consider whether it would be appropriate and practicable for the children to have substantial and significant time (as that term is defined in the Act) with the father.

3. It does not require a great deal of consideration to accept that it is not practicable for the children to spend equal time with each of their parents. 

4. Equally it is not practicable for them to spend substantial and significant time with their father.  The requirements of their schooling and the geographical distance between the parents would preclude equal shared time and (assuming that there is some appropriate temporal element attached to the words ‘substantial’ and ‘significant’) the children spending substantial and significant time with their father. 

5. The definition of substantial and significant time is however helpful as a guide to the sorts of matters which the legislators thought were appropriate for the parents to share with their children.  The definition reads as follows:

   (3)      For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)   days that fall on weekends and holidays; and

   (ii)  days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)   the child's daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

1. It might readily been seen that if the children were to spend time with their father as he suggests, the father might have substantial holiday time with the children but would have little opportunity, if any, to participate in the lives of the children on a day-to-day basis.

2. I propose to address that in part in the orders I make in this matter although by my orders the father would be exposed to a greater deal of expense then he appeared to be prepared to engage in (from his evidence during the course of the proceedings). 

Best interests of the children

1. My determinations in this matter are governed by s 65AA which provides that the paramount consideration for me must be the best interests of the children.

2. That is not to eliminate the needs and rights of each of the parents; but it is to say that in the end other matters ought to be subservient to what is best for the children. 

3. The Act prescribes two primary considerations in determining what is in the children’s best interests and about ten additional considerations.  I turn to those considerations now. 

4. The Act provides that the safety of the children is the first and foremost consideration.  In this matter while I accept the mother’s evidence about the violence occasioned to her and to the children, I accept the mother’s goodwill in trying to ensure that the children have a good relationship with their father and I further accept that the children want to spend time with their father. 

5. I found the father’s evidence about his violence both unconvincing and at times disingenuous.  He denied punching the mother while they were driving.  He did however concede that he “back-handed” her (whatever that may mean in this context) and was likely to have chipped her tooth with the ring that he was wearing on the hand with which he slapped her.  Listening to his voice and considering his demeanour and the probabilities of the situation concerned I accept that the incident had far more gravity then he was prepared to acknowledge.  It was a common theme in the father’s evidence that he minimised his shortcomings at almost every opportunity. 

6. By way of further example I point to the fact that B asserted that his father had twisted his ear.  Initially the father denied this completely.  He conceded afterwards he may have touched the bottom of his son’s ear with his thumb and forefinger and did so in the course of giving him “a nudge”.  I accept the part of the father’s discipline of B was the twisting of his ear and possibly other acts of relatively minor violence.  The father acknowledged that he had “smacked” his children but denied having “hit” them.  He seemed unable to satisfactorily explain the difference between the two things. 

7. This demonstrated to me again the lack of empathy that the father had in relation to his former wife and children most particularly on the basis of his understanding the effects that his actions might have on them.  His attempts to minimise the severity or gravity of his actions did him no credit.  It is extremely lucky that his children want to spend time with him and that his former wife is committed to their having an appropriate relationship with him. 

8. It follows from what I have set out above that I am satisfied that both parties consider that it is important for the children to have a relationship with the other parent and indeed with the extended family on both sides.  I am satisfied (and find) that the mother not only has but will continue to support the children’s relationship with their father and will take all reasonable steps to maintain that relationship and to encourage it. 

9. I am satisfied that the children would derive benefit from the relationship with their father but that does not mean that all other things should be subject to that end.

10. The Family Report provides some insights into the relationships between the children and their parents and what is remarkable in my opinion, is notwithstanding the assertions by the children of the violence their father engages in from time to time, they are ready, willing and indeed happy to spend time with him. 

11. I am satisfied that they want to live primarily with their mother.  I am satisfied from the Family Report that they would like to spend time with their relatives in Country I.  I could not pretend that the evidence would enable me to form any concluded view about whether they would prefer (if called upon to make a straight choice) the mother’s or the father’s proposed arrangements. 

12. The Family Consultant in fact suggested different arrangements and for my part I think that the ultimate arrangements should be different from those again. 

13. The Family Consultant drew attention to the fact that the children needed some stability and that the sort of travel proposed by the father for the children was more extensive than would be consistent with their wellbeing.  I found the evidence of the Family Consultant on this issue persuasive. 

14. I think the children would benefit from spending time with their father in the USA as that is part of their heritage and that that should be for a total of six weeks in each year in two lots, one in December/January school holidays and one in the summer school holidays in America.  This is contrary to the mother’s proposal and is not in line with the recommendation of the Family Consultant. 

15. The clever cross-examination of the father demonstrated that the travel from Australia to America was and will be time-consuming and somewhat tiring for the children.  This means that for shorter periods there is a limited value either to the children or their father in travel to the USA. 

16. Two longer periods a year would enable the children to be part of their father’s routine and while the information I have about the matter is limited, I am satisfied that the father’s parents can supplement the father’s ability to look after the children.

17. I would hope that the father would, notwithstanding his comparatively poorer financial circumstances from the mother, afford a priority to arrangements to enable him to spend time with the children in Australia. 

18. The children should nevertheless be able to travel with their mother on a relatively regular basis (including to Country I assuming the situation is safe according to the safety warnings issued by the Department of Foreign Affairs and Trade). 

19. This means, in my contemplation, that the father might spend the children’s first school holidays with them in Australia and if he is able to do so, at some other time during the year, to travel to Australia at a time when the children are at school so that he can spend at least some time in circumstances where he can be part of their daily routine.  It is to be noted the mother does not disagree with this proposal. 

20. I do not however believe that the mother should be required to meet the costs of all of the travel of the father to Australia.  She should (because of her superior financial circumstances and the fact that it was her choice to come to Australia and the need for the children to have less frequent travel but possibly more significant time with their father) pay for the children’s travel to America twice a year as suggested above and of course her own travel and her accommodation during the time the children are in the USA.  The travel that the husband undertakes to Australia and the expenses associated with that should be undertaken at the husband’s expense.[6] 

    [6] It is noted the father concedes he has relatives in Sydney with whom he might stay on some if not all occasions.  Given the substantial financial commitment I propose to impose upon the mother as set out above it seems reasonable to me that the father should continue to meet his own living expenses in Australia as he has done so to the present time. 

21. It would be apparent from the comments I have made above that I accept that the children have a good relationship with each of their parents although there can be little doubt that their primary relationship is with their mother.  In my opinion, from his statements and demeanour the father in some respects indicates a lack of empathy for the children’s needs.  It is to be hoped that he will pay some attention to this matter and when these proceedings have concluded apply his mind to how he can best satisfy the interests of the children rather than emphasising and potentially enforcing his own asserted “rights” about the children. 

22. In coming to the conclusions I do, I take account of the extent to which the children’s father has failed on some opportunities to spend time with the children or to participate in making decisions about major long-term issues in relation to them. 

23. The mother is inclined to be more critical of the father than I think is justified about these matters.  I accept there are significant difficulties on the part of the father in how he can arrange his life to spend more time with the children and the distance between the parties means his ability to participate in decisions about their long-term welfare is to some extent limited.  There is no doubt however, that the mother has been the principal decision maker and has made sensible and appropriate decisions in relation to the children.  I am satisfied also that the mother has done what she reasonably can to facilitate the children’s time with their father and to spend time with them herself in ways that were appropriate.

24. I have made comments about the parties finances above but I accept that the father has met his obligations (as ordered) to maintain the children.  His somewhat dismissive approach to the mother’s contributions to the children’s financial welfare do not do him credit and I formed the distinct impression he would pay what he was ordered to pay but no more.

25. The arrangements that I am proposing to make in this matter accept that there will be some separation between the children and their father for longer periods than the father believes is appropriate.  This was in conformity with the recommendations of the Family Consultant and recognises that the relationship does not need the constant reinforcement of the father’s presence. 

26. I note that it is important for the children to have contact with extended family on both sides and this is acknowledged by both parents.  Arrangements were proposed to enable this to occur.  It certainly will not provide the extended family with the same time as the parents might have; but I do not regard that as being as critical for the children’s best interests as the facilitation of a proper relationship between each of the parents and the children. 

27. I am satisfied that the mother has the capacity to provide for the needs of the children including their emotional and intellectual needs.  I believe the children will derive support for their needs also from their father in these areas within the times suggested. 

28. The children’s cultural background will be satisfied by their opportunities to visit Country I with their mother and by the fact that the father communicates with his parents in Country I.  I am satisfied that both parents will ensure the children have a proper appreciation of their culture and traditions. 

29. I have commented previously about the attitude of each of the parents to the children and do not propose to add anything further. 

30. Moreover, I have already commented about issues relating to family violence and again propose to make no further comment. 

31. I am hopeful that these orders will be less likely to lead to the institution of further proceedings about the children but I cannot predict what might happen in the course of the remaining years of the time that the children are under eighteen years of age. 

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 24 June 2015.

Associate: 

Date:  24 June 2015

[i] Orders of Deputy Chief Justice Faulks dated 7 May 2015

5.     In this matter it would be of assistance to me if the children’s views about the arrangements proposed by each of their parents might be obtained and I request that the Senior Family Consultant in Canberra make arrangements for the children to be interviewed as soon as is practicable for the purposes of determining their views about the arrangements as set out by each of their parents. 

annexure 1-
Orders made in the Court of Common Pleas dated 19 March 2010
Deleted for anonymised version